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Thursday, August 25, 2005

The First Amendment protects a lot of things, such as the right to petition the government for redress of grievances. But three of its clauses are much more celebrated and invoked much more frequently than the rest. And Jerry Falwell doesn't seem to like any of them. It's no wonder: yesterday's unanimous defeat in the Fourth Circuit wasn't the first time the First Amendment had thwarted him in high-profile litigation.

Falwell obviously hates the Establishment Clause, which is supposed to prevent the government from imposing Christianity (or any other faith) on us. You'd think he'd like the Free Exercise Clause, being someone who likes to exercise freely, loudly, and publicly, but the problem with that clause is that it unfortunately protects the ability of heathens--particularly, these days, Muslims--to follow their twisted rituals as well.

Again, the Free Speech Clause is one that you'd figure Falwell would like, since his career is devoted to speaking out about his ideas and beliefs. Especially since he not infrequently says things that are quite outrageous. In a number of advanced democracies, his buddy Pat Robertson might have been sued or even prosecuted for his moronic "let's kill Chavez" tirade, but not in the U.S. Similarly, when Falwell and Robertson blamed 9/11 on gays and feminists and atheists, a lot of people were properly outraged and opined that F & R should just shut up; but, thanks to our Free Speech Clause, no one thought the government should shut them up or even that a family who'd lost a gay, feminist, atheist child no 9/11 should be able to sue for emotional distress.

But, again, Falwell's problem with the Free Speech Clause is that it applies to people who disagree with him. Famously, Falwell's lawsuit against Hustler went all the way to the Supreme Court, which ruled unanimously that even a remarkably offensive, stupid, and unfunny "parody" couldn't be the basis for a lawsuit.

Well, as his old pal Ronald Reagan might have said, there he goes again (pdf). Once again, Falwell is making legal history. This time, he sued the owner of fallwell.com, a site that criticizes (to put it mildly) Falwell's interpretation of the Bible and his views on homosexuality. The site gets fewer visitors than this one, so it's hardly causing the good reverend a lot of problems, but he went after it on trademark and anti-cybersquatting grounds.

And he lost. The Fourth Circuit, explicitly invoking First Amendment concerns, decided that it is not a violation of federal trademark law to use someone's trademark (or a misspelling thereof) as the URL for a website criticizing that person or (more often) company--as long as it's obvious to a visitor that the site isn't sponsored by the trademark owner. In other words, since anyone who came to the site would immediately see that Jerry Falwell couldn't possibly be endorsing the views presented by the site, there was no misuse of the trademark.

The "gripe site" issue is important these days, and, thank goodness, the clear majority of federal courts are coming down on the right side. It's not only websites, though: many thoughtful people are sounding the alarm over corporations' use of intellectual property law and libel law to silence critics in many different media. (Remember when the beef industry sued Oprah? Or when Atrios was threatened by Donald Luskin's lawyer? And, of course, when Fox went after Al Franken for violating its "fair and balanced" [sic] trademark?).